Friday, June 4, 2010

Ohio: Where Good News Abounds

I was getting set to delve into the world of constitutional interpretation again.
The plan was to do some riff off of now-retired Supreme Court Justice David Souter's commencement speech at Harvard.  It's an impressive speech exploring just why the balls 'n' strikes model of judging and justicing (at least of constitutional judging and justicing) is necessarily nonsense and why, also, the idea that what he calls the "fair reading" model is equally hopeless.
I still want to do that.  Maybe tonight (ah, yes, another Friday night writing blog posts; you enjoy the weekend your way and I'll enjoy it mine) or tomorrow.
But the news cycle interrupts.
So it's time for a quick (I promise) dip into the criminal-law related waters of the Buckeye State (that's Ohio).  Three events.  Two at least something of a surprise.  Yesterday's first.
The Supreme Court of Ohio
On November 4 last year, the Ohio Supreme Court heard oral argument in four cases challenging in a variety of ways the retroactive application of Ohio's latest sex offender classification, registration, and notification law, the Adam Walsh Act.  (You can watch the arguments by following the links here.)
As relevant here, the AWA required that some 26,000 people who had judicially determined and imposed registration requirements would be reclassified by the state Attorney General under the new system.  The old system classified people based on a calculation about the likelihood they would be dangerous.  The more dangerous, the more attention would be paid and the greater focus.  The new system increased surveillance over everyone but abandoned the concern with prospective dangerousness.  The vast majority of those 26,000 had their classification categories and duties increased dramatically.  Thousands were moved from the least monitored to the most monitored - not because they were more dangerous (again, that was irrelevant) but because of what they had been convicted of.
Anyhow, today makes 7 months since the argument.  In the interim, the Chief Justice before whom we argued (disclosure, I was counsel and did the oral argument in the first of that morning's cases, State v. Bodyke) died suddenly.  And this is an election year in which one of the sitting justices is running against the newly appointed Chief Justice.  So we've been waiting.  And waiting.  And wondering if the court was going to order us to come back and argue them again after the election.
Now we know.  Yesterday, the court ruled in Bodyke, the first of those four cases.  Those 26,000 people were previously classified by judges.  The Attorney General, even acting on the legislature's command, cannot undo the acts of the judiciary.  The three branches of government can and should work together.  No branch, though, has the right to usurp the role of another.
26,000 people will return to their prior classifications.  We might have wished for a broader-based ruling, but this is an absolute win.  Not just for the 26,000 men and women (and their families) affected, but for all the people of Ohio.  Applying the new law to them is not only costly and unconstitutional, it actually makes us less safe, sapping attention and resources from where they can do good and directing them to where they serve no purpose.
Score One.
Governor Ted
A couple of weeks ago, I wrote about Richard Nields.  He was due to be murdered by the Ohio Department of Rehabilitation and Correction on June 10.  But the Parole Board voted 4-3 to recommend that the Governor commute his sentence to life without parole.  Three reasons.  One Ohio Supreme Court justice said that Nields' wasn't the sort of case the law should be applied to.  The federal appellate court that affirmed his death sentence said it wasn't the sort of case the law should be applied to.  And then there was Paul Shrode, the coroner who did the autopsy of the woman Nields killed, Patricia Newsome.  
Shrode testified at the trial, providing much of the evidence about how Newsome's murder was coldly calculated, evidence the prosecutor urged the jury to rely on, evidence it turns out that had no scientific basis whatsoever.  Shrode just lied about it. 
A week after the Parole Board issued its decision, Shrode was fired from his job as medical examiner for El Paso County, Texas.  Alicia Caldwell explained it this way in her story for the Dallas Morning News.
El Paso County's medical examiner was fired Monday following years of questions about his resume and qualifications.
Dr. Paul Shrode, who testified in an Ohio capital murder case where officials are now recommending the death sentence be overturned, was released from his job after a 3-1 vote by county commissioners, said commissioner Veronica Escobar.
Questions about Shrode's qualifications have swirled since he acknowledged in 2007 that he lied on his resume about having a law degree. Last year, the county was notified that Shrode was no longer eligible to become board certified in pathology, despite his claims of having received the certification years earlier, Escobar said.
"Cumulatively his own actions have made it so that it's hard for the community to have faith in Dr. Shrode and for me to have faith in Dr. Shrode," Escobar said after the vote.
So we've been waiting.  What would Ted do?  Frankly, I figured he'd let Nields die.  I mean, what the hell, who really cares, and there's an election coming up and, well, Ted hasn't exactly shown that he cares deeply about this stuff.
I guess I owe our Governor an apology.  Today he commuted the sentence to LWOP.  Richard Nields will live.  Ohio won't murder anyone this month.
Sorry for misjudging you, Ted.  
Except, there were all those other guys you let die.  And lots more are in the dock.  Many with real dates.
Score Two.
Lorain County
Her name is Nicole Diar.  She did or did not murder her 4-year-old son, Jacob.  She was sentenced to die in 2005.  Three years later, the Ohio Supremes sent her back to be resentenced.  Yesterday that was done.  Life without parole.
I've talked about LWOP before, never with joy.  It is, as I've said, a sentence of death in prison.  It's the removal of hope.  It's as ugly as can be.  Yet . . . . 
Kreig Brusnahan, one of her lawyers, put it this way.

It’s a difficult day for Ms. Diar and her family, but, given the choices we had, life without parole is certainly a better choice than the possibility of facing the death penalty.
Score Three.

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